Attacking Amy Coney Barrett, Donald Trump’s nomination to fill Justice Ruth Bader Ginsburg’s Supreme Court seat, feels like a third rail. There’s seemingly no way to do it without Democrats getting burned with blowback for being anti-Catholic or unfeminist. On a recent episode of Amicus, in a discussion taped just before Trump officially made his nomination, Slate’s Dahlia Lithwick and Mark Joseph Stern are joined by the Nation’s justice correspondent Elie Mystal to unpack what’s in play here, and how Democrats should fight this battle. A portion of their discussion, which has been edited and condensed for clarity, is transcribed below.
Dahlia Lithwick: Does it matter who he names?
Mark Joseph Stern: Yeah, it absolutely doesn’t matter who he names because we already know why he has selected this individual. He’s really gone on TV multiple times and stated his chief criterion, which is that he wants a justice who will hand him the presidential election that we are currently in. He has said over and over again that he will not accept a peaceful transfer of power automatically, that he does not believe the election is necessarily being run fairly, and that he will win once the federal judiciary and the Supreme Court make sure that the ballots, by which we think he means mail-in ballots, are not counted, because he thinks mail-in ballots are fraudulent. I mean, really he thinks they’re just cast by Democrats, but what’s the difference to him? So Donald Trump is looking for a Supreme Court nominee who will, in a quite plausible Bush v. Gore–like scenario, automatically rule for him, nullifying as many democratic ballots as necessary to ensure that he receives another term. That is this man’s stated public goal. I could not care less the vessel he chooses for it. This is what he’s doing, and we know why he’s doing it.
Elie Mystal: And of course, Mark, he’s not even making the choice really. It wouldn’t matter what Trump wanted because the Republicans, the Federalist Society, the arch-conservatives, they’re the ones making this pick. And they, for a generation, have told us what they want out of this pick. They want a woman to be the person who either ends or significantly eviscerates Roe v. Wade. They want a woman to beard them from the constant accusations of sexism that are rife within their movement. And they want a woman to be the one to extend gun laws and to do all the things conservatives want to do. It does not matter which vessel he picks to do this with.
I wonder if we’re already being set up for a trap in so far as the nominee, as of this taping, hasn’t been selected and I’m getting 10 emails a day blistering me for being anti-Catholic or for being anti-woman. They haven’t picked a nominee yet, and already, apparently, whoever that person is is a victim. And so I’m trying to figure out how, assuming it is a woman or assuming it is a person who has made her faith the centerpiece of her legal thinking—it’s a trap for Democrats to engage with any of them, right?
Stern: I don’t really want to touch this with a 10-foot pole, but it’s very obvious that Republicans are licking their chops over the prospect of any Democratic senator saying literally anything about the nominee’s faith, particularly if it is Judge Barrett. And we know this because when Amy Coney Barrett was before the Senate for her hearing to go to the 7th Circuit, Dianne Feinstein, ranking member of the Senate Judiciary Committee, grilled her on her faith and said, “The dogma lives loudly within you,” which, I think, was inappropriate. I think was really stupid. And I think was a massive boon to Amy Coney Barrett’s prospects to eventually reach the Supreme Court because there’s nothing Republicans want more than to be able to play the victim card here. That is what ultimately got Brett Kavanaugh on the court. He turned around and said, I am the real victim. And they’re going to run a similar playbook. This woman is a victim of bigotry, of Democratic haters, and Republicans in the Senate, you have to stand behind her.
And let’s remember Clarence Thomas. High-tech lynching. This is an old playbook, but Elie, I want to ask you the question: Is there a way of framing the question about what Judge Barrett has written about the interconnection between a judge’s faith and the doctrine they produce? Is there a way to frame that question where you don’t pull back a bloody stump?
Mystal: No matter how you do that, there will be bad faith people on the Republican side who accuse you of acting in bad faith. And no matter how you frame it, there will be cowardly chicken-livered liberals, who are like, ahhhh-gahhhh. No matter what you do, you’re going to get that from both sides because the Republicans act in bad faith and the liberals act with cowardice. So it’s impossible to frame it in a way that appeases both of those extreme wings, but in terms of being able to sleep with yourself at night, knowing that you have done right, of course, there is a way to ask that question. You have to ask that question.
You have to bring it up because she herself has brought it up. There are Catholic nominees out there who do not make their faith a particular issue in their judicial opinions. I don’t begrudge her believing what she believes as a matter of faith. I begrudge her imposing it on me. That’s always the issue. I have no problem with a person who says, because I am X, I believe Y in the law. Whatever problem I have with it is when you say, because I believe X, I believe Y in terms of the law, and you must as well. That’s where I’m like, whoa, don’t tell me why Jesus doesn’t want me to have an abortion. Tell me why the Ninth Amendment of the Constitution doesn’t allow me to have abortion, because if you can’t do that, you can’t do anything for me. That’s where the argument is against this issue. And of course there is a way to frame it as such, but no matter what, Republicans are going to say that you’re being bigoted and Democrats are going to be scared about it.
Stern: Also, I just don’t know how much utility there is to asking such a question, because the Federalist Society has spent 40 years now building up a kind of secular justification for many extreme rulings that might be viewed as theocratic. So there is no point in accusing someone of using their faith to judge, because there’s always a neutral justification.
Mystal: There’s no point in engaging at all. There’s no point in having a hearing. There’s no point in lending legitimacy to an illegitimate process by having a sit-down hearing about her issues, because it honestly doesn’t matter.
So wait, stop, stop, stop. Because I absolutely was one of the people who said Democrats in the Senate shouldn’t even have shown up for Neil Gorsuch’s hearing, because there should be yellow crime scene tape around Justice Antonin Scalia’s seat. And it was fascinating. I covered the hearings, and I think that the Democrats in the Senate were sort of both there under protest and there fighting on the merits. I think if we really are quite serious that to engage in this hearing on the merits is to bless this hearing on the merits, is the tactic to just not show up or chain yourself to the Senate floor? In which case, you’re playing right into Mike Pence’s hands because Mike Pence has said, We don’t need a hearing because we’ve got to do this fast so she can decide the election. So this strikes me, as tactics go, as one of those very clever stunts that I agree with morally but that is going to absolutely serve the purposes of Mike Pence more than mine.
Mystal: Here’s my play: You send one person—you remember Republicans for Kavanaugh had the female assistant? You send your female assistant to the hearing room, not an actual senator because that’ll make them look bad, but you send an assistant to the hearing room to engage in every possible delaying tactic on the book. You make it ugly. You make that hearing, procedurally speaking, last as long as possible, but you, the senator, add no legitimacy to the process by being there. You’re busy chaining yourself to the Senate floor or holding speeches on Capitol Hill or doing whatever it is you do to “oppose the nominee,” but you don’t physically show up at the hearing to add legitimacy to it. But you also send somebody to gum up the works as much as possible. You play both sides in that fashion.
Look, bottom line, if the Kavanaugh hearings didn’t matter—and it turned out they didn’t matter—then nothing matters. If what happened at the Kavanaugh hearings was not enough to make enough Republicans find a shred of conscience or decency, nothing is ever going to be enough with these current Republicans. It’s not a confirmation hearing; it’s a confirmation coronation. And there’s no reason for the Democrats to show up for that.
Stern: I do think that substantive questions should be asked at this hearing by the Democratic side, and it could be one single female assistant or it could be a senator. I think that all of the substantive questions have to be about legitimacy. I don’t think they should be asking this nominee about Chevron deference. We know that this nominee will overturn Chevron deference. I don’t think they should even really be asking things like, how do you feel about capital punishment? We know all the dodges, we know the script, we’ve been through this twice before under Trump.
And so I think that the questions have to be really laser-focused: We know why you are here, we are now going to grill you under oath about all of the reasons why you are here and see if you’re going to lie about them. Why did Donald Trump choose you? And what did he mean when he said, I need a Supreme Court justice to basically decide this election? What did he mean when he said, I need the judiciary to throw out the ballots so that I can win? Why is he pushing you through before Justice Ginsburg’s funeral? Why the urgency? Why do you think you’re here? And if the nominee says anything other than to hand Donald Trump the election, then we know that the nominee is a liar and that no one should trust anything this person says under oath, period.
Mystal: What about the current Democratic Party makes you think that they are capable of doing that?
Stern: Right? Well, that’s the problem. The Democratic Party has been really bad at countering McConnell’s moves on the judiciary throughout this entire presidency. But I think that if there is ever a moment to try to encourage this party to aspire to something like doing its job, this has got to be it. There has got to be a unified voice, a unified chorus of people saying, Democrats, you are there for a reason. This is a power grab that may destroy the court and will destroy half the entire country’s faith in the court, probably forever. What are you going to do about it?